Public health orders vs Bill of Rights – “Sequester the elderly and infirm…”

May 1 Reopen San Diego Rally at Hall of Justice credit to J. Daniel Jones, 2020

What police are saying

The San Diego Police Department issued a statement about recent protests against public health orders that raise questions about whether the Constitution gives our government authority to restrict freedom during a crisis. And if so, does the current pandemic warrant such restrictions and to what extent?

In response to the weekly protests that started at the Hall of Justice April 18, SDPD Lt. Shawn Takeuchi said police “allowed the protesters to exercise their First Amendment Rights.” But he also said police investigated a lead protester for criminal violation of the county health order and forwarded a case to the City Attorney’s Office for potential prosecution. I asked how a person could be prosecuted for exercising their First Amendment Rights, especially when he says police allowed them to.

He explained, “We want the legal experts [at the City Attorney’s Office] to determine if First Amendment rights outweigh a violation of the [county health] order or if violations of the order outweigh the First Amendment.”

Lawyers chime in

So I asked some local attorneys if it’s possible for public health orders to outweigh the Bill of Rights. This debate digs deeper into the reporting from my most recent Reader article on the protests.

Civil rights attorney Shawn McMillan, who lost a bid this year for a seat on the San Diego Superior Court, has won multiple awards for defending the “rights of children and parents to be free of unwarranted government intrusion” in lawsuits against social service agencies. He argues against continued restrictions on people’s freedom.

Former San Diego County Democratic Party chair Kennan Kaeder, who’s practiced law in San Diego for 35 years, argues for the limitation of rights during this public health crisis.

Kaeder: “Any constitutional right can be ‘outweighed’ if there is a countervailing right that should be given higher importance like in this case, the right of others to live and not succumb to a horrible death of suffocation alone in an ICU. In the midst of a highly lethal pandemic, the states can issue orders to limit social or physical gatherings. There is no infringement of anything.”

And Kaeder says even First Amendment gatherings can be limited. “This situation is unique and I believe the law and the constitution are fluid and flexible enough to deal with it. Those offended by the stay at home orders can certainly petition the government for a redress of grievances, as long as the manner of the petition doesn’t harm others.” He points out that even though the state courts are closed to civil cases the federal courts are open and cases can be filed electronically.

McMillan: “Our Constitution is what makes America special. Everybody’s respect for it is what makes us unique in the history of the world. The greatest danger to Americans is the vast majority of us are so willing to fall into a totalitarian state. People don’t understand the gift we’ve been given in the Bill of Rights. We’re gonna lose it if people don’t get educated.”

He continues, “This whole thing is upside down. You can’t quarantine healthy people. That’s established case law. Newsom has de facto quarantined 40 million healthy people. It’s the elderly and morbid who are dying. They say we want to protect that population? The strict scrutiny standard must be met. Is there a less intrusive alternative means than shutting down businesses and locking everyone at home? Yes. You sequester the elderly and infirm. The rest of us go about our daily lives. I think that would pass constitutional muster.”

Kaeder responds, “The stay-at-home orders are limited. There are no ‘lock down’ orders. There is no quarantine. No one has been imprisoned.”

McMillan says he has clients coming in with First Amendment, Fifth Amendment and Fourteenth Amendment concerns. “Barber shops and hair salons may file a class action lawsuit to get injunctive relief and suspend discriminatory shutdown orders. They’re playing favorites.”

But Kaeder says most of the lawsuits being filed have no merit, except maybe some of the businesses complaining of discrimination in the shutdown orders.

Politicians speak up

State Senator Brian Jones, who represents northeast and east San Diego County, is concerned about Governor Newsom’s emergency powers. He says, “After an emergency or crisis is contained, if the state Executive fails to return the extraordinary powers he or she was temporarily given by the people, the Legislature, representing the people, should intervene and take back those powers. If the Legislature fails to act, it may be up to citizens to seek relief from the judicial branch.”

However, Democrat Newsom enjoys a California legislature with Democratic super-majorities. And San Francisco attorney Harmeet Dhillon, a Republican Party official, believes Newsom has abused power and she is already seeking relief from the judiciary.

Dhillon’s non-profit Center for American Liberty issued a news release April 24 saying the state originally restricted religion “to streaming video or telephonic services, with no communal worship permitted.” But after filing a lawsuit on April 13 Newsom “amended the state’s lockdown orders to lift restrictions on churches, mosques, synagogues, temples, gurdwaras, and other houses of worship from conducting drive-in religious services, which had previously been explicitly banned in numerous counties…The Constitution doesn’t allow for state officials to treat [houses of worship] as second-class ‘non-essential’ organizations.”

California’s Sixth District Assemblyman Kevin Kiley, of suburban Sacramento, tweeted on May 2, “Harmeet is almost single-handedly keeping checks and balances alive in California.”

On April 27 U.S. Attorney General William Barr issued a memo directing U.S. Attorneys to “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.”

How did San Diego’s U.S. Attorney Robert Brewer respond? He issued a press release April 24 discouraging the use of xenophobic terminology for the SARS-COV-2 virus and on May 4 issued a press release warning landlords not to request sexual favors from tenants. But he hasn’t issued any statement about state and local government violations of liberty. Brewer did not respond to a request for comment. Neither did the ACLU of San Diego.

Do professors have answers?

I asked UCSD History Department Chair Edward Watts, author of “Mortal Republic: How Rome Fell into Tyranny,” whether he sees history repeating itself and what America’s greatest risk of falling into tyranny is. He didn’t describe any current government orders as dangerous but says armed protests are dangerous (In a subsequent SD Rostra post San Diego County Gun Owners argue these armed protests are appropriate.) His main concern is that the public discussion not “evolve from a healthy exchange of ideas to a conversation with threatening overtones.”

Watts says enforced quarantines were common in early twentieth century America and that during the flu pandemic of 1918 people in California were fined if they went out in public without a mask. And he says there was a “similar effort to balance the need to preserve public health and liberties.” University of San Diego constitutional law professors did not respond to offer their insight.

What about Facebook?

In a Facebook “poll” I posted to groups from three local political parties asking what government restrictions are justified during this pandemic, 19 out of 549 “San Diego Republicans” and 12 out of 250 “San Diego Libertarians” responded. They were both unanimous there should be no restrictions.

Nine out of 1,646 “San Diego Labor Democrats” responded. One voted for no restrictions; eight for restrictions on schools, restaurants and entertainment venues; and seven for public beaches, parks and mass transportation.